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Gay Marriage Back On in California; Country Yawns

Gay rights advocates will worry about Justice Kennedy's vote, and Democratic strategists will fret about collateral damage in November--but in the grand scheme of things, the battle for gay marriage is over.

August 12, 2010

Just a few moments ago, Judge Vaughn Walker of the Northern California district court lifted a stay on his judgment overturning Prop 8—which means that as of August 18, gays and lesbians in California are free to marry once again and that Gavin Newsom will have a very busy schedule. Of course centrist Democrats will throw themselves into a professional swivet over the sight of big pink nuptials and the possible drag on vulnerable candidates in the midterm elections. But that kind of thinking is so very 2004. The new reality is that gay marriage is so mainstream, it’s banal.

When Judge Walker’s decision came down last week, I was on vacation in Provincetown. It was "family week," and the place was packed with gay and lesbian parents and their black and brown children with politically-cute names like Langston and Ella. I thought P-town would erupt in celebration, but in fact, aside from a few obligatory toasts, vacation-life went on as usual: grilling, drinking, dancing to Lady Gaga–at some point, little Langston was scolded for chasing a squirrel into the street.

Of course, there are reasons why gays in Massachusetts would accept the Prop 8 decision with equanimity. Same-sex marriage has been legal in the state for the past six years, and gay marriage advocates here scored their own victory recently in a pair of federal court decisions that struck down a part of the federal Defense of Marriage Act (DOMA) because it violated the state’s rights and equal protection clauses of the Constitution. Also, everyone knows that the ultimate reckoning will take place in the Supreme Court, where Justice Kennedy’s vote is crucial and uncertain.

But if these factors mitigated the elation one might have expected, also missing from the emotional stew was a sense of dread: that this decision had happened too soon, that the backlash was coming and that gays would once again be blamed for the Democratic party’s failures, as they were in 2004. Since then, something has undeniably changed in the political culture: gay rights have moved ahead, but also—to the side.

Broadly speaking, opposition to same-sex marriage has been supported by four interlocking legs: cultural consensus, political opportunism, bureaucratic inertia and religiously-motivated animus. What the past two years and especially the recent marriage decisions reveal is that the last leg is the only one left intact.

Public opinion has been swinging towards same-sex marriage for some time; a recent CBS/NYT poll found gay marriage winning a 33 percent plurality, with 30 percent for civil unions and 32 percent for no legal recognition, with younger voters concentrated in the pro-gay marriage camp. Polls like this underscore a more significant development: gay marriage has cornered the market on positive vibes. Far from being demoralizing, the passage of Prop 8 revitalized the gay marriage movement, motivating apathetic gays and lesbians while also drawing straight allies. Gay marriage has the cute-factor and the hot-factor; for heterosexuals in particular it manages to signal tolerance and open-mindedness, even a whiff of rebellion, while also thoroughly appealing to bourgeois sentimentality.

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These long-term electoral and emotional calculations are reason enough for the GOP to duck the chance to run on homophobia in 2010, but there are more immediate factors in play. First, there just aren’t any anti-gay marriage initiatives on the ballots—the only attempt at one, in Maine, failed to collect enough signatures. Without these mechanisms, the only tangible electoral benefit of anti-gay politics to the GOP—increased turnout and share of the white evangelical vote—just doesn’t materialize.

The second reason is quite simply that the Republican Party doesn’t need to gay-bash. In the days after the Prop 8 decision, Glenn Beck, the current Princeling of right-wing populism, who once opined that heterosexual marriage is “the building block of the entire universe,” was entirely silent on the matter except to slam Bill O’Reilly for bringing the subject up at all. Beck’s programs were all about debt and the dangers of big government, and elsewhere in the right-wing blogosphere, it was all mosques, migrants and Michelle Obama’s trip to Spain. As Republican Congressman Peter King told Politico, “The Arizona immigration law is there, there’s no reason to be raising an issue of gay rights.” Black-brown-Muslim is the new gay, with race and religion offering the GOP a much more incendiary way to connect to their base’s sense of injury and decline than gay marriage ever did.

The most dramatic shift, however, has been in how the state itself approaches gay citizens. Gay activists give Obama a lot of heat for not making gay rights a top priority, and while it’s their right and duty to gripe, that shouldn’t obscure the sea change taking place. Here the long view is helpful: as historian Margot Canaday persuasively documents, the 20th century witnessed the creation of “the straight state,” a vast apparatus by which the federal government identified and discriminated against homosexuals, coming to define them as “anti-citizens,” especially in regard to immigration, military service and welfare. Much of this anti-gay edifice is, of course, still in place, but its resilience today has less to do with active government interest in pursuing homophobic policies than it does with sheer bureaucratic inertia. Once sedimented, state bureaucracies tend to defend their prerogatives, even after the original rationale for them is but a dusty memory. (It’s why, for example, up until the mid-1990s, the US customs form for inbound ships required them to list the number of cannons on board.)

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On this front, the past two years have witnessed something remarkable: the bureaucratic inertia to keep the straight state in place has begun to crumble. On the federal level, “don’t ask, don’t tell” is on its way, however slowly, out the door, and the Obama administration has granted same-sex couples hospital visitation rights and extended some spousal benefits to LGBT employees, while also calling for the repeal of DOMA itself. Yes, Obama’s Department of Justice defended DOMA in the Massachusetts cases, but even there they conceded that none of Congress’ reasons for passing the law (procreation, promoting heterosexual marriage, defending morality and conserving resources) were rationally served by it—a move that led anti-gay marriage zealots like Maggie Gallagher to conclude that the DoJ had essentially thrown the case.

On the state level the turnabout is even clearer. By declining to defend Prop 8 in federal court, Governor Arnold Schwarzenegger and Attorney General Jerry Brown left the case in the hapless hands of the Protect Marriage campaign and the Alliance Defense Fund—who were so thoroughly outmatched by David Boies and Ted Olsen that in the aftermath of the decision, right-wing groups spent more time denouncing each other than defending hetero marriage. Meanwhile, Schwarzenegger hailed the decision as a "milestone on America’s road to equality and freedom for all people" and urged Judge Walker to lift his stay. In one of the Massachusetts cases, the plaintiff was the state itself, represented by Attorney General Martha Coakley, marking the first time that a state has challenged the legality of the federal government’s policies on same-sex marriage. In both the California and Massachusetts cases, federal judges ruled that laws against same-sex marriage did not even pass the rational basis test, and Walker’s decision in particular is shot through with shades of contempt and incredulity at the thinness of arguments offered by the anti-gay marriage side.

Surely Justice Kennedy is aware of all this change. How he will respond is anyone’s guess. But my hunch is that recent events make a tortured, Sandra Day O’Connor-esque decision—one that confers some marital rights but retains the term marriage exclusively for heterosexuals—less and less likely. Kennedy would have to find some rational basis for the state to discriminate—and it’s quickly becoming apparent that the state isn’t even interested in asserting that itself. This leaves him with two options—to spit in the face of history and vote with the religious bigots, or to swim with the tide.